Clean Power Plan to have its day in court

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The D.C. Circuit of the U.S. Court of Appeals will hear oral arguments about the fate of the Clean Power Plan starting September 27, and experts say the case will likely be taken up by the Supreme Court.

Given the vacancy on the Supreme Court, the D.C. Circuit's decision could be more important with only 8 justices left in the high court and no plan to fill the vacancy.

More than half the states in the Union (27 in total) have resisted the Clean Power Plan, a set of policies aimed at cutting power plant carbon emissions that cause climate change and human health risks. The plan has seen legal and political resistance since the August 3, 2015, when it was first unveiled.

On February 9, 2016, the Supreme Court halted implementation of the Clean Power Plan pending judicial review. The high court's decision was not based on the merits of the rule, but rather how much it would cost, with the justices saying not enough consideration was given to the rule's potential to impact the economy and jobs.

Officials with the Environmental Protection Agency said they are confident the plan will stand up in court since it is based on sturdy scientific and legal foundations.

Power plant-related carbon emissions totaled 2,416 million metric tons and 1,891 MMT in 2005 and 2015, respectively; both are benchmark years for the Clean Power Plan.

In a pro-CPP future, that CO2 output by power plants would fall to between 1,550 MMT and 1,560 MMT in the 10 years from 2030 to 2040, according to the U.S. Energy Information Administration.

An anti-CPP outcome in the federal courts would result in projected emissions of 1,942 MMT in 2030 and 1,959 MMT 10 years later, according to the report.

Several energy groups have joined the effort to stop the plan, with Travis Kavulla, president of the National Association of Regulatory Utility Commissioners (NARUC), testifying at the House of Representatives that the plan is a federal government power grab.

“The implementation of the Clean Power Plan probably will have the semblance of a political compromise that involves creating a carbon resource plan where politically favored power plants are brought online either through a direct mandate of a state plan, or in exchange for emissions reduction credits or similar instruments created by regulatory fiat and which other generators are required to obtain,” Kavulla said, according to a transcript of his testimony.

California, Illinois and cities such as New York and Philadelphia, among others, are countering the opposition to the EPA’s proposed rules. Even some utilities, such as Dominion Resources, have filed documents supporting the plan.

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